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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-08-TC-1062
Alltel Wireless ) NAL/Acct. No. 200832170024
Apparent Liability for Forfeiture ) FRN: 0003803483
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 19, 2008 Released: February 19, 2008
By the Chief, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Alltel Wireless ("Alltel") apparently violated section 1.717 of
the Commission's rules by failing to respond to four (4) informal
complaints served on Alltel by the Consumer & Governmental Affairs
Bureau ("CGB"). Based upon our review of the facts and circumstances
surrounding this apparent violation, we find that Alltel is apparently
liable for a forfeiture in the amount of $16,000.
II. BACKGROUND
2. The Commission's informal complaint process, administered by CGB,
provides an avenue for consumers to have their complaints and
inquiries addressed through informal mediation and resolution by CGB
staff with the carrier. In this connection, CGB serves the informal
complaint(s) on the carrier and requires the carrier to provide a
written response within thirty (30) days discussing the satisfaction
of the complaint or the carrier's refusal or inability to satisfy the
complaint. Specifically, pursuant to section 1.717:
The Commission will forward informal complaints to the appropriate carrier
for investigation. The carrier will, within such time as may be
prescribed, advise the Commission in writing, with a copy to the
complainant, of its satisfaction of the complaint or of its refusal or
inability to do so. Where there are clear indications from the carrier's
report or from other communications with the parties that the complaint
has been satisfied, the Commission may, in its discretion, consider a
complaint proceeding to be closed, without response to the complainant. In
all other cases, the Commission will contact the complainant regarding its
review and disposition of the matters raised. If the complainant is not
satisfied by the carrier's response and the Commission's disposition, it
may file a formal complaint in accordance with S:1.721 of this part.
3. Pursuant to this process, CGB served on Alltel four (4) informal
complaints filed by four (4) consumers. Alltel, however, has failed to
respond to the four informal complaints referenced herein.
III. Discussion
A. Apparent Violation
4. Under section 503(b)(1) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any rule, regulation, or order issued by
the Commission shall be liable to the United States for a forfeiture
penalty. Section 312(f)(1) of the Act defines "willful" as "the
conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to section 312(f)(1) of the Act clarifies that this definition
of willful applies to both sections 312 and 503(b) of the Act and the
Commission has so interpreted the term in the section 503(b)
context. The Commission also may assess a forfeiture for violations
that are merely repeated, and not willful. "Repeated" means that the
act was committed or omitted more than once, or lasts more than one
day. To impose such a forfeiture penalty, the Commission must issue a
notice of apparent liability and the person against whom the notice
has been issued must have an opportunity to show, in writing, why no
such forfeiture penalty should be imposed. The Commission will then
issue a forfeiture if it finds by a preponderance of the evidence that
the person has willfully or repeatedly violated the Act or a
Commission order or rule.
5. Sections 4(i), 4(j), 218, and 403 of the Act afford the Commission
broad authority to investigate the entities it regulates. Section 4(i)
authorizes the Commission to "issue such orders, not inconsistent with
this Act, as may be necessary in the execution of its functions," and
section 4(j) states that "the Commission may conduct its proceedings
in such manner as will best conduce to the proper dispatch of business
and to the ends of justice." Section 218 of the Act specifically
authorizes the Commission to "obtain from ... carriers ... full and
complete information necessary to enable the Commission to perform the
duties and carry out the objects for which it was created." Section
403 of the Act grants the Commission "full authority and power at any
time to institute an inquiry, on its own motion ... relating to the
enforcement of any of the provisions of this Act." Finally, section
1.717 of the Commission's rules requires the Commission to forward
informal complaints to the appropriate carriers and requires a written
response from the carrier within such time as prescribed by the
Commission.
6. We find that Alltel apparently violated section 1.717 of the
Commission's rules by failing to respond to the above-referenced
informal complaints served by CGB. Further, the Commission on March 2,
2007, reminded carriers of the importance of responding to informal
complaints, and the seriousness of the penalties for failure to do so.
Nevertheless, Alltel has not responded to the four informal complaints
referenced herein. We conclude that Allltel's continuing failure to
respond to the informal complaints served by CGB constitutes an
apparent willful and repeated violation of a Commission rule.
A. Forfeiture Amount
7. Section 503(b)(1) of the Act provides that any person that willfully
or repeatedly fails to comply with any provision of the Act or any
rule, regulation, or order issued by the Commission, shall be liable
to the United States for a forfeiture penalty. Section 503(b)(2)(B) of
the Act authorizes the Commission to assess a forfeiture of up to
$130,000 for each violation or each day of a continuing violation, up
to a statutory maximum of $1,325,000 for a single act or failure to
act. Section 1.80 of the Commission's rules and the Commission's
Forfeiture Policy Statement establish a base forfeiture amount of
$3,000 for failure to file required forms or information, and $4,000
for failure to respond to a Commission communication. Alltel's failure
to respond warrants the base forfeiture amount of $4,000 for each
informal complaint, for a proposed forfeiture of $16,000.
8. Alltel will have an opportunity to submit further evidence and
arguments in response to this NAL to show that no forfeiture should be
imposed or that some lesser amount should be assessed.
IV. CONCLUSION and ORDERING CLAUSES
9. We conclude that Alltel Wireless apparently willfully or repeatedly
violated a Commission rule by failing to provide written responses to
the Commission in response to four (4) informal complaints.
Accordingly, a proposed forfeiture is warranted against Alltel
Wireless for this apparent willful or repeated violation.
10. ACCORDINGLY, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, Section 1.80(f)(4) of the
Commission's rules, and authority delegated by Sections 0.111 and
0.311 of the Commission's rules, ALLTELL WIRELESS IS LIABLE FOR A
MONETARY FORFEITURE in the amount of sixteen thousand dollars
($16,000) for willfully or repeatedly failing to respond to four (4)
informal complaints served by CGB in violation of section 1.717 of the
Commission's rules.
11. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's rules, within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, ALLTEL WIRELESS SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
12. Payment of the forfeiture must be made by credit card through the
Commission's Revenue and Receivables Operations Group at (202)
418-1995, or by check or similar instrument, payable to the order of
the Federal Communications Commission. The payment must include the
Account Number and FRN Number referenced above. Payment by check or
money order may be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment[s] by wire transfer may
be made to ABA Number 021030004, receiving bank Federal Reserve Bank
of New York, and account number 27000001. Requests for full payment
under an installment plan should be sent to: Chief Financial Officer
-- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to Alltel Wireless, to its address of record,
attn: Glenn Rabin, ALLTEL Communications, Inc., 601 Pennsylvania, NW,
Suite 720, Washington, D.C. 20004.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Appendix
IC# 07-I0268411, served on April 11, 2007
IC# 07-I0269035, served on April 18, 2007
IC# 07-I0268752, served on April 25, 2007
IC# 07-W12780516, served on April 25, 2007
47 U.S.C. S: 503(b)(1). The Commission has the authority under this
section of the Communications Act of 1934, as amended (the "Act") to
assess a forfeiture against any person who has "willfully or repeatedly
failed to comply with any of the provisions of this Act or of any rule,
regulation, or order issued by the Commission under this Act ...."
See 47 C.F.R. S: 1.717.
47 C.F.R. S: 1.717.
See Appendix.
47 U.S.C. S: 503(b)(1)(B) and 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, P: 10
(2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, 16 FCC Rcd at 1362, P: 9.
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002) ("SBC Forfeiture Order").
47 U.S.C. S:S: 154(i), (j), 218, & 403.
47 U.S.C. S: 154(i), (j).
47 U.S.C. S: 218.
47 U.S.C. S: 403; see also 47 U.S.C. S: 154(i), (j).
47 C.F.R. S: 1.717. As noted supra, CGB serves the informal complaint(s)
on the carrier and requires the carrier to provide a written response
within thirty (30) days.
Public Notice, Consumer & Governmental Affairs Bureau Reminds Common
Carriers of Their Obligation to Timely Respond to Informal Complaints, DA
07-989 (March 2, 2007).
47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(2).
47 U.S.C. S: 503(b)(2)(B); see also 47 C.F.R. S: 1.80(b)(2); Amendment of
Section 1.80(b) of the Commission's Rules, Adjustment of Forfeiture Maxima
to Reflect Inflation, Order, 19 FCC Rcd 10945 (2004).
47 C.F.R. S: 1.80; Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
Report and Order, 12 FCC Rcd 17087, 17114 (1997), recon. denied 15 FCC Rcd
303 (1999).
47 U.S.C. S: 503(b)(b)(4)(C); 47 C.F.R. S: 1.80(f)(3).
47 U.S.C. S: 503(b).
47 U.S.C. S: 1.80(f)(4).
47 C.F.R. S:S: 0.111, 0.311.
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(continued....)
Federal Communications Commission DA 08-427
2
Federal Communications Commission DA 08-427